Recover.ie : Mental Health Act, 2001

The Mental Health Act was written into the statute books in July 2001. The Act provides for:

● Changes to the existing rules on the involuntary detention of people for psychiatric care and treatment
● An independent review procedure in the case of all involuntary detentions
● The establishment of a Mental Health Commission, Mental Health Review Tribunals and an Inspector of Mental Health Services
● The monitoring and regulation of the standards of care and treatment in psychiatric hospitals and facilities
● The legal rights of patients.

At time of writing, no Ministerial Order for commencement of the Act has yet been made. It is planned to implement the act on a phased basis over the next 3-5 years.

The Mental Health Commission was established in 2002, however the Mental Health Tribunals have not yet commenced.

It is anticipated that there will be a Ministerial review of the Act every five years and a report will be presented to the Houses of the Oireachtas on the findings of the review.

Involuntary admission

A person may be involuntarily admitted and detained in an approved centre if he/she is suffering from a mental disorder*. There is a requirement under the Act that the reception, detention and treatment of the person would be like to benefit or alleviate their condition to a material extent.

In a decision concerning care and treatment under the Act, the best interests of the person must be the main consideration, but with regard to interests of other persons also. Where a recommendation, admission order or decision regarding treatment is being made, as far as possible the person must be notified. No decision should be made without allowing the person to make a representation.

In decisions concerning the admission order, care and treatment, regard must be had of the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.

If the person is suffering from a personality disorder, is socially deviant or is addicted to drugs or intoxicants, these are not grounds, on their own, for involuntary admission.

The Act sets out in detail the procedure which must be followed.

Application

The applicant (person making the application) must have seen the person who is to be involuntarily admitted within the 48 hours prior to making the application. If the application is being made by 'any other person', the application must include a statement of the reasons why it is being made, the connection of the applicant to the person concerned and the circumstances in which the application is made.

Medical assessment
The person concerned must be examined by a doctor (who is not a relative and is not involved with an approved centre) within 24 hours of the making of an application. The doctor must inform the person concerned of the purpose of the examination unless he/she considers that such information would prejudice the person's mental health, wellbeing or emotional condition. If the doctor considers that the person is suffering from a mental disorder, he/she makes a recommendation that the person be involuntarily admitted to an approved centre (other than the Central Mental Hospital). An approved centre means a hospital or other in-patient facility for the care and treatment of persons suffering from mental illness, or mental disorder.. This recommendation remains in force for seven days. All examinations (i.e. initial assessment and hospital assessment) require a personal examination of the process and content of thought, the mood and the behaviour of the person concerned.

If the application is refused and a subsequent application is made, the applicant is obliged to inform the doctor about the previous application, if aware of it.

Removal to an approved centre

In general, it is the applicant who is responsible for taking the person to the centre. If this is not possible, then the doctor who made the recommendation may ask the clinical director of the centre or a consultant psychiatrist acting on his/her behalf to arrange for the person to be brought to the centre by the staff. If necessary, the Gardai may be asked to help. In this situation, the Gardai have the power to enter premises by force and may detain or restrain the patient if necessary.

Role of Gardai
If a Garda has reasonable grounds for believing that a person is suffering from a mental disorder and that, because of the disorder, there is a serious likelihood of the person causing harm to him/herself or another person, the Garda may take the person into custody. If necessary, the Garda may use force to enter the premises where it is believed that the person is. The Garda must then go through the normal application procedure for involuntary detention in an approved centre. If the Garda's application is refused the person must be released immediately. If granted, the Garda must remove the person to the approved centre.

Admission to an approved centre
When the person is received at the approved centre, he/she must be examined by a consultant psychiatrist on the staff. He/she may be detained for a maximum of 24 hours in the centre for the purpose of carrying out this examination. If the psychiatrist is satisfied that the person is suffering from a mental disorder then he/she makes an involuntary admission order. If not, the patient must be released immediately.

The admission order is valid for 21 days. It authorises the reception, detention and treatment of the patient in the centre for this period.

A renewal order may be made for a further period not exceeding three months. This must be made by the consultant psychiatrist responsible for the patient and he/she must have examined the patient in the week before making the order. A further renewal order may be made by the same psychiatrist for a period not exceeding 6 months and for further periods not exceeding 12 months at a time.

Patient's right to information
Each time an admission order or a renewal order is made, the consultant psychiatrist must give a copy to the Mental Health Commission and a notice in writing of the order must be given to the patient. The notice to the patient must include the following information:

● The patient is being detained under the Mental Health Act
● He/she is entitled to legal representation
● He/she will be given a general description of the proposed treatment to be administered during the detention
● He/she is entitled to communicate with the Inspector of Mental Health Services
● He/she will have the detention reviewed by a mental health tribunal
● He/she is entitled to appeal to the Circuit Court against a decision of the tribunal
● He/she may be admitted as a voluntary patient if he/she wishes.

Consent to Treatment
The law on consent to medical treatment in cases where the patient is not capable of making a decision is quite unclear. This applies to patients who are suffering from a mental disorder and to patients who are, for example, comatose. It is presumed that involuntary patients are capable of consenting to or refusing treatment.

For the purposes of this Act, which refers only to the consent of involuntary patients, consent means consent, obtained freely without threats or inducements, where

● the consultant psychiatrist who is caring for the patient certifies that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment and
● the psychiatrist has given the patient adequate information, in a form and a language that the patient can understand on the nature, purpose and likely effects of the proposed treatment.

Under the Act, the consent of a patient to treatment will be required except where the consultant psychiatrist considers that the treatment is necessary

and the patient is incapable of giving such consent because of his/her mental disorder.

Psycho-surgery may not be performed unless the patient consents and it is authorised by a tribunal.

Electro-convulsive therapy may not be performed unless the patient gives consent or where the patient is unable or unwilling to give consent, the therapy is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist.

Where the patient is receiving medicine for the treatment or management of the mental disorder for a period of three months, the medicine must be discontinued unless the patient consents or, where the patient is unable or unwilling to give consent, the continued medication is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist. This applies also to children.

Restraint
Patients may not be restrained or placed in seclusion unless this is necessary for treatment or to prevent the patient from injuring him/herself. This provision also applies to voluntary patients and children detained by court order. The Commission will make rules for the use of seclusion and mechanical means of bodily restraint.

Clinical Trials
Patients who are involuntarily detained may not take part in clinical trials. This by implication does not extend to voluntary patients.

Review of admission by a Mental Health Tribunal

When the Mental Health Commission receives a copy of an admission or renewal order, it must:

? Refer the matter to a tribunal

? Assign a legal representative to represent the patient unless the patient personally engages one

? Direct, in writing, a member of the panel of independent consultant psychiatrists to examine the patient; to interview the consultant responsible for that patient's treatment and care, to review the patient's records in order to decide, in the interests of the patient, whether the patient is suffering from a mental disorder

? The results of the examination, interview and review report must be given within 14 days to the tribunal and a copy to the patient's legal representative.

The tribunal must review the detention of the patient and make a decision within 21 days of the making of the order (there are provisions for extending this time limit). If they are satisfied that the patient is suffering from a mental disorder and that the proper procedures have been followed (or, if they have not, the failure does not affect the substance of the order and does not cause an injustice) then they affirm the order. If not satisfied, they revoke the order and direct that the patient be discharged.

In order to carry out its functions, the tribunal has similar powers to a court including the power to require the attendance of the relevant people and the production of documents. The tribunal is, of course, obliged to respect the usual requirements of natural justice e.g. it must ensure that the patient has copies of the reports which are being considered by the tribunal.

The tribunal must notify its decision, in writing, to

● the Mental Health Commission
● the psychiatrist responsible for the patient's care and treatment
● the patient and his/her legal representative
● any other person the tribunal considers should have notice.

Membership of Tribunal
The Tribunal is appointed by the Mental Health Commission and must consist of three members, consultant psychiatrist, a lawyer (as Chairperson) and a lay-person (who is not a lawyer, a doctor or a nurse).

Appeal to the Circuit Court
A patient may appeal to the Circuit Court (within 14 days) against a decision to confirm his/her detention or renewal order. It is up to the patient to prove his/her case that he/she is not suffering from a mental disorder.

Transfer of patients to other centres
A patient or an applicant can apply for transfer to another approved centre, subject to the agreement of the Clinical Directors involved. The Act sets out the procedure which must be followed if a patient is transferred to another approved centre. Special procedures apply to transfers to the Central Mental Hospital. The Commission must always be informed of any transfer.

Voluntary patients

There are no formal admission procedures for voluntary patients. If a voluntary patient wants to leave hospital and the consultant psychiatrist or a doctor or nurse on the staff considers that the patient is suffering from a mental disorder, he/she may detain the person for a period not exceeding 24 hours.

During this period the consultant psychiatrist must arrange for an examination by another consultant psychiatrist. The second consultant must issue a certificate stating that the person should be detained because of a mental disorder or must discharge the patient. If the person is detained, he/she is then an involuntary patient and all the procedures relating to information, review and appeal apply in the usual way. Otherwise the patient must be discharged.

If the voluntary patient is a child and the parents or guardian want to remove him/her, the professional may have the child detained and placed in health board custody (if the professional considers that the child is suffering from a mental disorder).

The Health Board may apply for the involuntary admission of a child who is suffering from a mental disorder. Such an application must be made to the District Court. The Court will order a psychiatric examination and may then make an order that the child be admitted to an approved centre for a maximum of 21 days, which may be extended as for adults. Specific approval by the Court is required if it is proposed to carry out psycho-surgery or electro-convulsive therapy on a child with a mental disorder.

The Act provides for the establishment of an independent Mental Health Commission (MHC). Its main purpose will be to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of people who are detained in approved centres. Among other things, the MHC will:

● appoint the review tribunals
● establish a panel of consultant psychiatrists to carry out independent medical examinations
● arrange for a scheme for granting legal aid to patients
● advise the Minister
● prepare codes of practice for the guidance of people working in the mental health services.

The Commission will be composed of 13 members. Among them there must be a lawyer, 3 representatives of doctors (at least two psychiatrists), 2 nurses, a social worker, a psychologist, a Health Board representative, a representative of the general public and 3 representatives of voluntary bodies, at least 2 of whom must be sufferers or former sufferers of mental illness.

Inspector of Mental Health Services
The Commission will appoint an Inspector of Mental Health Services. The Inspector's functions will be

● to visit and inspect every approved centre at least once a year.
● to carry out a review of mental health services every year and report to the Commission on the quality of care and treatment given to people in receipt of mental health services and other aspects of the services.

The Inspector will have various powers to enter and inspect premises, to get information from the staff and to take evidence under oath.

The Inspector may be requested by the Commission to carry out an inquiry into

● any approved centre or any premises where mental health services are provided
● the care and treatment provided to a specified patient, whether voluntary or involuntary
● any other appropriate matter.

These are defined as hospitals or other in-patient facilities for the treatment of people suffering from mental illness or mental disorder and as such they must be registered. The Commission on Mental Health must establish and maintain a Register of Approved Centres. Conditions attached to registration may require

The Commission decides whether or not to register the centres. The register must be available for public inspection. There are provisions for appeals against a refusal to register a centre.

The Minister for Health and Children will make regulations on standards in approved centres, after consulting with the Commission. These regulations will cover, among other things, adequate and suitable accommodation, food and care for patients and how centres are run. In particular, they will cover

Standards of maintenance, care and welfare
Staffing levels including requirements as to the suitability of staff
Accommodation requirements, including the structural suitability of the building
The maintenance of a register of residents and records
The provision of individual care plans, drawn up in consultation with the patient, to include the setting of appropriate goals
Information to be provided to the Inspector

It will be an offence not to comply with these standards. All approved centres will be under the clinical direction of a consultant psychiatrist.

Civil Action

The Act defines mental disorder as mental illness, severe dementia or significant intellectual disability where:

● because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit him or her to an approved centre would be likely to lead to a deterioration of the condition or would prevent the administration of appropriate treatment that could only be given by such an admission and the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition to a material extent.